When Sued By A Copyright Troll, Using The 'Blame The Torrent Site And Also I Don't Speak English' Defense Is Really Dumb

from the not-how-it's-done dept

It's one thing to take a stand against questionable copyright trolling, but it's another thing to be a really bad defendant. We had this with both of the RIAA's lawsuits against Jammie Thomas and Joel Tenenbaum. In both cases, they were bad defendants who clearly broke the law and then tried to play cute in defending themselves. In both cases we pointed out that they should have settled, and that fighting on when they had no case was a really bad idea. Yes, there are all sorts of ridiculous things about many of these cases, and there are all sorts of legal questions raised about them. But if you're caught dead to rights infringing on the works of others, pretending that some magical fantasy world is going to open up in the back of the closet is just silly. Even worse: bad defendants create really bad case law that allows copyright trolls to use those cases to shake down lots of other people, many of which probably have much stronger cases.

Unfortunately, it looks like we have another example of this. Uber copyright troll/porn producer Malibu Media has won an easy lawsuit against a defendant who tried to blame everything on the fact that he used Kickass Torrents to download Malibu Media movies. 57 of them. That kind of blaming the middleman is never going to work. In fact, others have tried it in the past, and it doesn't work. As the judge in the case noted:

Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff’s works—copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy.

Of course, one could make a reasonable argument that the fragmented transfers raise issues concerning the distribution right of copyright, but not the reproduction right. On the reproduction right, the defendant, Don Bui, is clearly cooked. And he and his lawyer should have recognized that much earlier. Instead, they get this ruling that, because of the bad defendant, makes a bunch of broad statements that go beyond just Bui's immediate case and may create problems elsewhere. For example, the judge, Robert Jonker, cites the Aereo ruling to support this -- even though that's a dangerous way to read the Aereo ruling. Jonker seems to accept the "don't look in the black box, just look at the end results" aspect of Aereo. But, under such a system, lots of things that aren't infringement might now be judged infringing. It's basically a shortcut to avoid careful analysis, and that's what happens when you have bad defendants who clearly infringed.

Bui's lawyer also tried the "poor immigrant who doesn't understand English very well" argument and saw that shot down as well. Deservedly so. There are plenty of reasons to challenge questionable lawsuits. And plenty of reasons for some folks to legally attack the underpinnings of copyright trolling -- including things like honeypots and abusing the judicial system to shake down people -- but taking a bad defendant all the way through the legal process is a bad idea. And the end result is going to be that Malibu Media not only claims vindication for its activities, but waves them around to every reporter, judge and (most importantly) future targets of its shakedown game.

Reader Comments

I hate it when things like this happen, this was just the headline Malibu needed ahead of the 30th after taking it on the chin recently. You have to wonder if it wasn't by design that they pushed ahead with this one, considering it's not very likely to be profitable for them.

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Intent Not Required

"In court papers, Bui admitted that he "ordered" movies through Kickass Torrents but he didn't know they were unauthorized."

The court ruled that didn't matter and that makes this a very dangerous ruling. You better have your legal team audit all the legal agreements back to the copyright holders before you download that movie from Netflix or Amazon. You could be liable if all the permissions aren't in perfect order.

Re: Intent Not Required

The court ruled that didn't matter and that makes this a very dangerous ruling. You better have your legal team audit all the legal agreements back to the copyright holders before you download that movie from Netflix or Amazon. You could be liable if all the permissions aren't in perfect order.

Eh, that's how existing law works. If you make an unauthorized reproduction, you can be liable for infringement. I don't see how that part is particularly dangerous.

Re: Re: Intent Not Required

I think what he means is that if you download an illegal copy from a source that presents itself as authorized the fact that you were unaware that it not would still make you liable according to that logic.

Re: Re: Intent Not Required

Imagine this scenario...

Trolls create and distribute malware that uses BitTorrent to automatically download copyrighted content and report the users to the troll and removes itself from the system. Troll then sues users that had no knowledge that their system was downloading copyrighted content without their knowledge. Trolls then sue without disclosing the fact that malware downloaded content without users knowledge. User claims no knowledge of downloading unauthorized content but troll points to this decision to claim user didn't have to know.

Re: Re: Re: Intent Not Required

It is very possible, though it would require Prenda-level stupidity for anyone to think this would be a good idea in the long run. Something similar happened recently, with the rise of Bitcoin mining malware. This malware runs in the background, leaving the user thinking their PC is running slowly, not realizing it's actually bogged down running something like cgminer. There have even been apps infected with this malware, so it's not as farfetched as you might think. http://www.coindesk.com/google-pulls-six-mobile-wallpaper-apps-bitcoin-mining-malware/

Re: Re: Re: Re: Intent Not Required

1. Trolls don't care about the long run otherwise they would invest their efforts in a business model that was designed to last instead of trolling.

2. It would take Prenda level stupidity to get caught before making a ton of cash out of it. The whole point of the software removing itself from the system after they got the information they needed would be to avoid detection and remove the evidence of the fact that the software was there setting up the lawsuit in the first place.

Re: Re: Re: Re: Re: Intent Not Required

You make a good point. Still, when it comes to torrents, it can be a double edged sword when you set up a honeypot (i.e. when TPB outed Prenda). Then again, what has happened to Prenda because of it? No jail time, and even with sanctions they still netted a nice haul.

I admit I haven't followed this as closely as a lot of you, but I'm not sure what to make of Malibu. Is the porn production just a front so that they can deny the troll moniker (unlike Prenda, who made the mistake of trying to produce porn to sue over when the game was already over)? Or do they want to double dip, make money from the trolling and the porn production? I don't pretend to know the answer to that.

Re: Re: Re: Re: Re: Re: Intent Not Required

I haven't really followed this case. I was just imagining a scenario based on the logic behind that ruling and Mike's questioning of how it was dangerous.

Still with the laws being screwed up with bad precedent like "if it looks like a duck" maybe the what is needed is a little Citizens United style technique to reverse the bad precedent. For instance:

Imagine if someone decided to honeypot the trolls. Notice that the logic to the "don't look in the blackbox" part of this ruling is completely dependent on the idea that they end result is the same (ie. an unauthorized reproduction). But what if someone specifically setup a situation (with a bunch of money and legal firepower per-arranged behind them quietly beforehand) where the end result was purposely NOT the same. Like I said in my earlier comment, what if the pieces were purposely NOT re-assembled into an authorized reproduction through methodical documentation of their process. If they were sued based on BitTorrent traffic but were able to definitively prove that an authorized reproduction was not created, the court has to consider what is in the blackbox.

Re: Re: Re: Re: Re: Re: Intent Not Required

Porn producers don't really care how they make money as long as them make it. They don't care who they exploit, they don't care who they outrage, and they don't care how low they stoop as long as the money comes it. It's in their nature. I think they are more like Perfect 10 who got into producing porn and then realized that they could also make money off of trolling.

Re: Re: Re: Re: Re: Re: Intent Not Required

It's a bit more complicated and totally different than it appears in Malibu's pleadings and motions.

In the nutshell, the show is run by the Germans (Guardaley), and XArt's role was meant to be minimal, but the pornographers are being dragged into the mess more and more deeply as of late.

About three years ago Guardaley's marketers found some adult plaintiffs and lawyers to form a shakedown outfit.

Producers were promised easy money: "just let us to use your copyrights, and you'll get monthly checks" (believed to be about 10% of the proceeds). Lawyers would receive some cut too, and the Germans would get the lion share. According to the latest revelations in an Elf-Man cases (same foreign puppeteers: APMC is a Guardaley's shell, just like Excipio or IPP iInternational),

Page 7 of that agreement includes redacted portions, but does otherwise indicate that any recoveries from APMC’s enforcement campaign would be allocated first to APMC’s costs, and then “the remaining monies shall be distributed as follows: (a) The appointed Attorney’s and litigation [REDACTED IN ORIGINAL], (b) The appointed forensic IT expert costs [REDACTED IN ORIGINAL], (c) The RIGHTS OWNER shall receive [REDACTED IN ORIGINAL].” In other words, it appears that APMC as the investigator and financier of the litigation has a direct and contingent stake in it.

So, while on paper the trolls are white and fuzzy (Lipscomb even managed to make Judge Baylson declare that he is not a troll), the Lipscomb/Malibu outfit is not much better than Prenda, and is premised on the same things: Orwellian statutory damages in copyright, strict liability, stigma related to porn, inherent unfairness of the civil jurisprudence (it costs more to defend than to settle), and so on.

Trolls adapt, and as we expose their sleaze (and as the case law is VERY slowly but surely patches the loopholes), things for XArt are not as easy as the pornographers expected them to be. XArt's principals can't just turn the lawsuit machine off, so they are now forced to allocate time and effort to play their puppet role (not to mention unwanted attention to their operations that are not exactly kosher from the law standpoint). I suspect that if they had a magical chance to start it all over, they would say "no thanks."

Hope it answered your question to some extent. There is still a lot ow white spots in the picture, but we are getting there. I have big expectations from the July 30 hearing in Maryland.

Re:

The sad thing is SOME of what is in that is correct but is completely undermined by the really dumb arguments that overshadow the good ones. His point about the installation of BitTorrent is valid. But the attempt to claim that the use of BitTorrent for infringement is the fault of the host of the torrent file (not even the creator of it) is really weak.

However, to play devil's advocate a bit, if BitTorrent software were altered such that the pieces were not automatically reassembled into an infringing copy, the "don't look inside the blackbox" theory falls apart, simply because the plantiff has no way to prove that an infringing copy was even assembled from those pieces unless they could obtain evidence to support the claim that that actually happened.

Malibu media lawsuit

I have a few question I would like some answer to :

1) first how they obtain the date/time hash info and the file?2) what methods did they use to obtain this info?3) if they were part of the swam, aren't they also doing the same?4) how do I know they didn't plant the file and seed it so they can use as bait?5) why would you use a company outside of the USA? Is it a lot easier to illegally perform data snooping outside the USA without any legal requirements? 6) who perform the data search, which company? Are they certified in USA to perform this search? What make them a expert in bit torrent or internet? We're the the developer of any torrent application? Or the founding fathers of internet?7) how do we know the data is real? Can it be perform again in real time?